Anyone facing a federal sentencing knows how difficult and daunting the U.S. Sentencing Guidelines can be for many types of crimes. For financial crimes, the amount of loss, number of victims, complexity of the scheme and the like can quickly ratchet someone with no prior offenses into the 10+ year range. With a system that does not allow for early release on parole, like most states, and that credits a defendant with only 54 days a year good time credit, sentencing in the federal system can be particularly harsh.

The Sentencing Guidelines, created in an effort to have greater uniformity in sentencing for similar crimes, have been advisory rather than mandatory since 2005. A report by the U.S. Sentencing Commission reviewing 150,000 sentences in drug; illegal reentry; fraud; and “other” cases by federal judges in 30 major cities revealed the prevalence of sentencing disparities.

The results illustrate several important facts. First, there are wide differences in sentences imposed by judges within the same city; the length of a defendant’s sentence increasingly depends on which judge in the courthouse is assigned to the case. Second, most judges across the country on average gave below the low end of the recommended guideline range. Third, sentences typically vary more from the advisory guideline range as the sentencing ranges get higher. For example, in economic crimes, where the advisory range exceeds 60 months (5 years) based upon the amount of loss, the majority of sentences go farther below the advisory range.

Given the above statistical analysis, what can experienced federal criminal defense attorneys do to maximize the benefit his or her client receives at sentencing? A number of federal judges recently spoke at the ABA Conference in New Orleans for the White-Collar Bar meeting. The judges emphasized three important factors they consider at sentencing:

One, a detailed sentencing memo from the defense that clearly and succinctly addresses the individual sentencing factors that warrant consideration for a below guideline sentence. Those factors usually include the defendant’s personal background and prior good deeds that distinguish him from other similarly situated defendants. Considerations typically include the defendant’s involvement in the community, church and charitable organizations prior to the charged offense; physical or mental health needs or treatment; and post-offense conduct that reflects a commitment to leading a law-abiding, respectful life.

Two, the defendant’s future plans to maintain a law-abiding life, including whether he has the support of his family, friends, and/or employer.

Third, what the defendant says at the sentencing. Many judges indicated this was critical in determining an appropriate sentence. Specifically, the judges wanted to hear the defendant accepting full responsibility for his actions, speaking with them sincerely and candidly without reading from a script.

In deciding the best course of action, it is always important to remember that the court wants to know why they should take a chance on a particular defendant and sentence them below the guideline range.

Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes. Founder Robert G. Stahl is recognized as one of the top criminal defense attorneys in the NY/NJ area for his skills, knowledge and success. To contact the firm, call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at rgs@sgdefenselaw.com.